With Deportations on the Rise, Here are Some Pointers

The government deported a record-high 396,906 individuals in the last fiscal year which ended in September 2011. Ninety-percent of the removed aliens fall under a priority category such as criminal offenders and repeat immigration violators.

More than half (55%) of the removals involved aliens convicted of felonies or misdemeanors, which is almost 90% more than the number of criminals removed since fiscal year 2008 and is the so far highest percentage in a decade.

This record is the latest of three years of increased immigration enforcement under President Obama. It reflects the government’s “focus on sensible immigration” by prioritizing the removal of criminal aliens, repeat immigration law violators and recent border crossers.

In June of this year, U.S. Immigration and Customs Enforcement (ICE) Director John Morton issued guidelines on the use of prosecutorial discretion by ICE employees and attorneys and called on them to use the agency’s limited resources on aliens who pose a threat to public safety or national security.

While these latest numbers affirm the government’s policy of prioritizing criminal aliens, it must be remembered that anyone who is without lawful immigration status can still be placed under removal proceedings.

Contrary to popular belief, unless subject to expedited removal an alien is generally entitled to court proceedings before being removed. Removal proceedings typically start with the service of a notice to appear (NTA) upon the alien.

The NTA specifies, among other things, the alleged immigration violation, the charge against the alien and the specific provision/s of the law alleged to have been violated, and the time and place of the hearing. An NTA may be served in person or by mail. As non-citizens are required to notify the USCIS of any change of address within 10 days of the change, in many cases the ICE may simply mail the NTA to the alien’s last addresses and it would be considered valid service.

If served with an NTA, the alien is strongly advised to consult an immigration lawyer because being placed under removal proceedings is a serious matter. An immigration lawyer can tell him whether proceedings can be terminated because of a problem with the NTA on its face or in the way that it was served. The lawyer can analyze the facts of the case, explain what options may be available, and if the alien would be eligible for a relief from removal. Reliefs include voluntary departure, asylum, adjustment of status and cancellation of removal.

The alien must attend the scheduled master hearing, which is a preliminary hearing where the charges are read and the alien is asked to admit or contest the allegations and whether he intends to seek relief from removal. An individual hearing is scheduled if the case will be heard on the merits.

The alien may be represented by an attorney at the master and individual hearings. However, unless provided pro bono or by a non-profit organization, any legal representation will be at the alien’s own cost because there is no right to government-appointed counsel in immigration cases.

The alien must keep the immigration court updated of any change of address and must attend his hearings. If he fails to notify the court of an address change, and because he did not receive correspondence he fails to attend a hearing, the proceedings may continue and may result in the alien being ordered removed in absentia.